住宅賃借人 保護制度의 改善方案에 關한 硏究 -A Research on the Reforms of the Housing

Abstract

The international human rights regulations states clearly that the residential rights is one of the basic human rights. This right is also acknowledged as one of the social basic rights in the Korean constitutional law. Generally speaking, residential life is an indispensable aspect within the individualistic, social, and economic lifestyle of the people. However, the protection of the residential rights can only be secured if the approachability, continuance and freedom of residential life is assured. In the case of Japan or European countries nowadays, they have achieved the continuance of the residential rights, far surpassing that of the approachability factor into a social legislation. In addition, they have now even secured the consideration of the benefits when they are talking about the concept of residential life. In Korea's case, the protection of the tenant is taken on by the Housing Lease Protection Act as part of a special law that falls under the jurisdiction of the civil law. However, since the basic direction of the Housing Lease Protection Act regarding the housing tenant is focused more on the securement of the housing before the residence rather than the continuance of the residence, it is not fully able to function in terms of guaranteeing the rights to continue the residence which is the essential premise of reaping the benefits of the residential rights. The reason behind this is that there is no guarantee of the limitation period of the housing rights to secure the continuance of the residence as well as the control of the rental payment within the Housing Lease Protection Act that functions in a realistic way. Thus, the housing tenants cannot continue on living in the said housing even though they might want to extend their residence. In the meantime, with the economic development and the higher distribution rate of housing by the Korean government, the number of tenants who are residing in public housing rather than individual housings are increasing. Therefore, it is necessary to define clearly the duties and responsibilities of the tenant and the landlord to reduce the amount of conflict as well as maintaining and managing the housing during the tenancy. Furthermore, the customs in Korea's rental obligations has always been where they pay a huge amount of key money or a security deposit and in the case where the tenancy comes to an end, for the tenant to secure new housing, it would be crucial to retrieve or get back the key money or security deposit that was paid to the landlord in the beginning of the contract. However, by law, the right to get a priority reimbursement is being acknowledged to get the key money or the security deposit back but this right is not a right that a tenant can exercise fully which reduces its actual functionability. In addition, in the case where the lease housing is put up for auction, the key money or the security deposit has an enormous effect on other related parties so there is a dire need to make clear and publicly announce the right of lease. The stability of the housing situation on the part of the tenant should at least have the basic guarantee that it would be continued and that there should be an appropriate arrangement of the payment during the tenancy and this can be achieved only through the definite clarification of the rights and responsibilities between the tenant and landlord. However, the Housing Lease Protection Act has its focus on the reimbursement of the key money or the security deposit and so more importance is placed on protecting the tenant before the residency rather than the continuance of the residency. As the situation standing as it is, this paper aims to look thoroughly into the issues that the current system has in terms of protecting the tenant. Based on that study, it further aims to point out that the basic direction of the protection of the tenant lies in future protection of the continuance of the residency rather than the protection of the tenant before their occupancy. The protection of the tenant can only be established if there is an intimate relationship between several aspects such as laws and systems as well as policies, taxations and finances. However, this paper especially focuses on the legal system amongst all the different aspects. The scope of the legal system in this paper is basically drawn around the Housing Lease Protection Act focusing around the civil law, protection of the commercial building leasing, housing leasing law and civil case execution method. If there is a need to look at laws that are related to the protection of the tenant than the above mentioned aspects, it will also come under the scope and discussions within this paper. There are a variety of laws in regards to the Housing Leasing Protection Act but the discussions in this paper will be limited to the right to appeal the housing leasing rights, priority reimbursement rights of the security deposit, control of the payment, protection of the right to continue residency as well as the rights and responsibilities of the tenant and the landlord during the tenancy which can all be said to the be the core in the law to protect the tenant.